Volume 134 — Illinois Reports

<p>Appeal from the County Court of Madison county; the Eton. Cybus L. Cook, Judge, presiding.</p>

This is an original suit in this court, and arises upon the application of the Auditor to have the action of the board of supervisors affirmed in holding certain mining privileges and rights taxable.

This bill was filed in the Morgan circuit court, by Meredith L. Smith, against George H. Huntoon, Isaac L. Morrison and Herbert G. Whitlock, for the purpose of setting aside the sale of an undivided one-fifth interest in a tract of land containing one hundred and sixty acres, and the sheriff’s deed made thereunder.

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Jo Daviess county; the Hon. Joseph M. Bailey, Judge, presiding. This was an action of assumpsit, hy William Ennor, against Thomas H. Hodson, upon a promissory note of $6000, dated September 18, 1882, payable to Alice Ennor, twelve months after date, without interest, if paid when due, and indorsed to William Ennor by Alice Ennor.

<p>Writ of Error to the Circuit Court of Vermilion county; the Hon. Edward P. Vail, Judge, presiding.</p>

<p>1. Doweb—allotment—upon what part of the premises—as, to abut upon a public road—right of election by the widow. "Where there is no dwelling house on the premises in which dower is sought to be assigned, the commissioners assigning dower to the widow are not required by law to consult her wishes. They are only required to make a fair division, according to quality and quantity.</p> <p>2. The statute does not require the commissioners to allot dower in such manner that the widow’s allotment shall abut upon a highway. The failure to allot the dower on a highway is no ground for setting aside the commissioners’ report, when it appears they have acted fairly, and have complied with the law and the order of the court.</p>

Writ, of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Sangamon county; the Hon. Jambs A. Creighton, Judge, presiding. This was an action on the case, brought by John Ensch, against John McNulta, receiver of the Wabash, St. Louis and Pacific Railway Company, in the Sangamon circuit court, to recover for personal injuries.

Clair county; the Hon. W. H. Snydeb, Judge, presiding. This was an action on the ease, by appellee, against appellant.

<p>Writ of Error to the Circuit Court of Morgan county; the Hon. Cyrus Epler, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;—■ heard in that court on appeal from the Circuit Court of Cook county; the Hon. Frank Baker, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Second District ;—heard in that court on appeal from the Circuit Court of Knox county; the Hon. Arthur A. Smith, Judge, presiding.

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. W. H. Snyder, Judge, presiding.</p>

<p>Appeal from the Circuit 'Court of Cook county; the Hon. Olives H. Hoeton, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Williamson county; the Hon. George W. Young, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p>

<p>1. Mechanic’s lien—time of performance—as an element in creating the lien—as to express and implied contracts. No lien is created by toe statute under an express contract, if the time stipulated for the completion of the work or furnishing materials is beyond three years from the commencement thereof, or the time of payment is beyond one year from the time stipulated for the completion thereof. If the contract is implied, the work must be done or the materials furnished within one •year from the commencement of the work or the delivery of the materials. No lien can be enforced unless the work, etc., is to be completed as required by the statute.</p> <p>2. Same—statement of claim—time of filing same—requisites, etc.—as against other creditors or incumbrancers. In order to enforce the lien as against any other creditor or incumbrancer, the party claiming the lien must file in the circuit clerk’s office, within four months after the last payment shall become due, a just and true statement, account or demand due him, after allowing all credits, setting forth the times when such materials were furnished or labor performed, etc., verified by affidavit.</p> <p>3. The purpose of requiring the claim to set forth “the times when such materials were furnished or labor performed,” is to enable those interested to know, from the claim itself, that it is such that can be enforced, and the verification by affidavit is required as a guaranty of the truth of the claim.</p> <p>4. Same—amendment of statement of claim. Any amendment to the statement of claim would have to be attached to the original, and filed within the time provided in section 28 for the filing of the original. The language of that section is imperative.</p> <p>5. Same—abstract of claim by clerk—and entry thereof—office of such-entry. The provisions of section 53 of the chapter of the Revised .Statutes relating to liens, requiring the clerk to make an abstract of the claim in a book kept for that purpose, and properly indexed, containing the name of the person filing the lien, the amount of the lien, the date of filing, the name of the person against whom the lien is filed, and a description of the property charged with the lien, was not intended to take the place entirely of the claim itself, and constitute the only notice required. The only purpose of section 53 is to furnish a convenient and ample reference to the claim.</p> <p>6. Same—affidavit of claim—sufficiency. To a claim filed for a mechanic’s lien was attached this affidavit: “F. A. W., being duly sworn, says he is the authorized agent for Hall Steam and Power Pump Company; that said company has performed the labor and furnished the materials set forth in the above statement of claim for a lien, and there is now due said company from John E. Burton, for said labor and materials, after allowing all credits and set-offs, the sum of $175, which affiant charges and alleges is a lien upon the said above described premisesHeld, that the affidavit was no verification of the statement of the claim.</p> <p>7. The affidavit may all be true, and yet the claimant be not entitled to any lien, as it fails to give any time. It should have been that the statement of the claim was true, it being required to state the time when the material was furnished, etc. The affidavit being defective, the claimant was not entitled to the lien sought.</p>

<p>Writ op Error to the Circuit Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding.</p>

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on appeal from the Circuit Court of Randolph county; the Hon. George W. Wall, Judge, presiding.

<p>Writ of Error to the Criminal Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding.</p>

<p>Writ of Error to the Circuit Court of Will county; the Hon. Charles Blanchard, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Monroe county.</p>

<p>Appeal from the Circuit Court of Cook county; the Hon. M. F. Tuley, Judge, presiding.</p>

<p>Appeal from the Circuit Court of Henderson county; the Hon. John J. Glenn, Judge, presiding.</p>

-Egbert Jamieson, Judge, presiding. Lucius G. Fisher died March 5, 1886. By his last will he made appellant (a daughter) his sole residuary legatee. Rachel C. Fisher, his widow, was nominated by the will, and qualified, as executrix. On the 10th day of January, 1887, the probate court of Cook county allowed a claim against his estate for $1278.24, in favor of appellee Elizabeth Durham. On the 4th of May, 1888, appellant filed this bill in the Superior Court of Cook county.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Elliott Anthony, Judge, presiding.</p> <p>This was an action of debt, on a bond given to secure the performance of a certain contract entered into by MacRitchie & Nicol, two of the appellees herein, to furnish and lay on the bottom of Lake Michigan an inlet-pipe, to be connected with the Lake View water-works. The condition of the bond, so far as material to the questions in this case, is, that the contractors “shall in all respects well and truly keep and perform the said contract, in accordance with the terms thereof, and the plans and» specifications therein referred to, in the times and manner described; and further, shall indemnify, keep and save harmless the town of Lake View from all liabilities, s * * damages and expenses in consequence of granting said contract, or which may in anywise result from the carelessness or neglect of said MacEitchie & Nicol, their agents, employes or workmen, in any respect whatever.”</p> <p>By the terms of the contract the contractors were to furnish all the material and do all the work required for the complete construction of an inlet-pipe and crib, together with a complete branch inlet-pipe and intake, to be connected with the well of the water-works, in accordance with the plans and specifications attached to said contract, and made a part thereof. One of the provisions of the contract was, that “all the work shall be executed in the best and most workmanlike manner, and no improper material shall be used, but all materials of every kind shall fully answer the specifications, or, if not particularly specified,'shall be suitable for the place where used.”' All material used and all labor performed was subject to the-inspection, and the approval or rejection, of the town engineer, and he had the right finally to decide all questions arising as to the proper performance of said work, and the work was to be done under his immediate direction and superintendence. The specifications describe the work, the size and material of the pipe, the flexible joints to be placed therein, and specify the number of piles to be driven along the line of the pipe, at such points as might be directed by the engineer, and the number of ball and socket joints to be used on the line of pipe, which was to extend from the shore end two thousand feet into the lake. The specifications also contained this clause. All of the work to be guaranteed to remain in good condition for one year from date of acceptance.” The engineer of the town drew the plans and specifications, and the work under the contract was entered upon and carried to completion under his actual direction. Twenty flexible ball and socket joints were required by the specifications to be placed on the line of ■said pipe, but the distance apart or location of said joints was not detailed in any manner, but as the pipe was laid they were placed as the engineer directed, though the location of them was contrary to the judgment of the contractors. Some months after the work was completed and accepted by the town, a break was found in the pipe, and the same was taken up by the town at considerable expense, and to recover the expense so incurred the action was prosecuted on the bond.</p> <p>On the trial it was one of the contentions of appellees that the break did not occur by reason of any defect in material or workmanship, but was due to defects in the plan and specifications adopted by the town and its engineer, in the lack of a sufficient number of flexible ball and socket joints to enable the pipe to conform itself to the undulations on the bottom ■of the lake, which were changed by every severe storm, and that the ball and socket joints that were in the pipe were improperly distributed along it, so that at points where, owing io the distance from the shore and the effect of the waves in moving the sand upon the bottom, they should have been placed at short intervals in the pipe, they were, by direction ■of the engineer, placed one hundred and fifty feet apart, and at other points where not needed they were placed close together. It was the theory of the trial court, however, that the guaranty clause contained in the specifications bound the contractors for any breaks that might occur in the work within •one year from its acceptance, even though such break could not be ascribed to bad workmanship, or the use of defective •or improper materials.</p> <p>The court, at the request of appellant, instructed the jury that the provision in the specifications whereby the contractors guaranteed that the work should remain in good condition for one year, was in fact a guaranty, not only that the work should be done in the most, workmanlike manner and with proper materials, but that the contractors would further see that it would remain in good condition for one year from the date of acceptance; and refused to instruct, as requested by appellees, that if the evidence showed that the break in the pipe was not owing to any defective workmanship or material in the execution of the contract by appellees, but was owing to defects in the plans devised by the town’s engineer, and adopted by the authorities of the town, for the construction and laying of said pipe, the plaintiff could not recover.</p> <p>The verdict and judgment in the Superior Court of Cook county were in favor of appellant, and for $3000 damages. On appeal to the Appellate Court that judgment was reversed, and the record was subsequently brought here by this further appeal.</p>

Charles Blanchard, Judge, presiding. This was an action on the case, by appellee, against appellant. The declaration contains two counts.

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the County Court of Cook county; the Hon. Richard Prendergast, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county.; the Hon. M. F. Tuley, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of Bond county; the Hon. Amos Watts, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. John P. Altgeld, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. 0. H. Horton, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of Iroquois county; the Hon. Alfred Sample, Judge, presiding.</p>

<p>Writ oe Error to the Circuit Court of Piatt county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>1. Nuisance—what may constitute a nuisance—by reason of its locality. A coal shed for the loading, unloading and storing of coal by the use of machinery, though not a nuisance per se, may be such from the particular locality in "which it is situated, as, in a thickly populated part of a city.'</p> <p>2. Same—right of action—of a public and a private nuisance. The general rule is, that public or common nuisances can only be proceeded against by indictment; but it is also a well established rule, that when a person sustains from a public nuisance a special damage different from that common to all, he may have his action therefor. The doctrine now is, that a nuisance may be at the same time both public and private.</p> <p>3. An individual who receives actual damage from ,a nuisance may maintain a private suit for his own injury, although there maybe many others in the same situation. So the use of a steam engine in a crowded street may be a public nuisance, but if the smoke from it injures a man’s goods in his shop or house," and makes his dwelling uncomfortable, he will have a right of action.</p> <p>4. If one is injured in the enjoyment of his residence in a populous part of a city, from the erection and operation of a large coal shed, by noises from the use of machinery, and the grinding of coal in being moved, loaded br unloaded, and from deposit of dust, etc., he may have his action against the author of the nuisance; and it is no defense to show that the same act inflicted a like injury upon many others.</p> <p>5. Same—evidence—showing character and extent of-injury. In an action on the case, to recover damages from the operation of a coal shed, and the handling of coal by machinery propelled by steam, in a populous part of a city, many owners and occupants of buildings in the vicinity were admitted to testify that they also were annoyed and injured by the noises and coal dust, in the use of their property: Held, admissible to show the character and extent of the plaintiff’s injury, and as tending to prove that the nuisance was capable of inflicting the injury complained of.</p> <p>6. Bight of way—by grant—damages as to land not included in the grant. In 1854 the owner of land conveyed a part of it to a railway company, for right of way: Held, that such deed could not be held to release any subsequent damages as to the remaining' land of the grantor by the use of the part conveyed for railway purposes.</p> <p>7. The conveyance of a strip of land to a railway company will not give the grantee the right to make any use of it which would iffjuriously affect the remaining land of the' grantor. The law annexes the condition that the owner of land shall so use it as not to produce injury to another.</p> <p>8. Under the constitution of 1870, where land has been acquired for railroad purposes by grant as well as by condemnation, all damages to the owner’s land not taken, for which an action would lie at common law, are presumed to have been considered in fixing the price. But no such presumption arises in respect to deeds for right of way under the constitution of 1848.</p>

<p>Appeal from the Appellate Court for the Second District;— . heard in that court on appeal from the Circuit Court of Mercer county; the Hon. John J. Glenn, Judge, presiding.</p>

Egbert Jamieson, Judge, presiding. Appellant filed her hill of complaint in the Superior Court of Cook county, in which she alleged, that on August 8, 1888, Loammi Hall, since deceased, executed an instrument in writing, which purported to be his last will and testament, and died on or about August 14, 1888, and that on August 18, 1888, said will was probated in the probate court of Cook county.

Lorin C. Collins, Judge, presiding. ■ This bill was filed by appellant on November 16, 1886, in the circuit court of Cook county, against the Phcenix Mutual ■Life Insurance Company, Aaron C. Goodman, Lemuel Baldwin, Ptolmey E. Hosmer and Lyman Baird, to set aside a sale made by Baird, as trustee, under two deeds of trust, of lots 2 and 3, in block 24, of Smith’s subdivision, etc., in Chicago.

<p>Appeal from the County Court of Hancock county; the Hon. John W. Marsh, Judge, presiding.</p>

A. N. Waterman, Judge, presiding. This was a suit instituted by the city of Chicago against the Chicago, Burlington and Quincy Bailroad Company, to recover upon an alleged contract of indemnity entered into by the company. The grounds of the action are set forth in the opinion.

<p>1. Jubisdiction—of the person—appearance—waiver. If there be no sufficient service of process on a petition for a common law writ of certiorari, the appearance of the defendant without making objection is a waiver of all defects of jurisdiction of his person, and the objection comes too late on motion in arrest of judgment.</p> <p>2. Same—defendant sued out of his own county—matter of jurisdiction to be pleaded. Section 2 of the Practice act, which makes it unlawful for any plaintiff in a transitory action to sue any defendant out of the County where the latter resides or may be found, gives the defendant a privilege, merely, of being sued in the county where he resides or may be found, to avail of which he must do so in apt time, by plea to the jurisdiction, or he will be deemed to have waived it.</p> <p>3. Same—drainage district—residence—for the purposes of suit. A drainage or quasi municipal corporation having within its boundaries territory in two counties, must be deemed to be existing and located, for all purposes of jurisdiction, in every part of its territory; and the same is true of its corporate authorities, so that an action, even if local, may be brought against the corporation in either county.</p> <p>4. Oebtiobabi—as a common law remedy—in force in this State. The common law remedy of certiorari is adopted and in force in this State, and any court exercising general common law jurisdiction has, unless expressly forbidden to do so by statute, an inherent authority to issue the writ.</p> <p>5. Same—not a'writ of 'right. The-common law writ of certiorari is not a writ of right, but issues only upon proper application and proper cause shown. ■</p> <p>6. Same—when the writ may issue. The writ of certiorari may be awarded-to all .inferior tribunals and jurisdictions, where it appears that they have exceeded the limits of their jurisdictions, or in cases where they have proceeded illegally, and no appeal is allowed, and no other mode is provided for reviewing the proceedings.</p> <p>7. Same—purpose of the writ—of the trial and judgment. The purpose of the writ is to have the entire record of the inferior tribunal brought before the court in which the proceedings are sought to be reviewed, to determine whether the former had jurisdiction, or had exceeded its jurisdiction, or had failed to proceed aecorcling to the essential requirements of the law. The trial is solely by inspection of the record, and if that shows the want of jurisdiction, or illegality, the proper judgment is that the record be quashed.</p> <p>8. Same—to what inferior tribunals the writ may issue. The general rule seems to be, that this writ lies only to inferior tribunals and officers exercising judicial functions, and the act to be reviewed must be judicial in its nature, and not ministerial or legislative. But it is not essential that the proceedings shall be strictly and technically “judicial,” in the sense in which that word is used when applied to courts of justice. It is sufficient if they are quasi judicial.</p> <p>9. Corporations— legality of organization■—exercise of assumed powers—by what remedies to be questioned—former decisions. In several cases in this court there are expressions from which it might be inferred that a quo warranto is the only mode of testing the legality of the formation of an existing de facto corporation; but that question did not arise and was not decided in them.</p> <p>10. In Lees v. Drainage Commissioners, 125 HI. 47, it is held that the writ of certiorari does not lie to determine whether a corporation has a legal existence, and that the validity of its organization can be questioned only by quo warranto. In that case, the corporate existence itself of a quasi municipal body was sought to be challenged by certiorari, while here such existence is fully admitted, and the only thing sought to be done is to call in question the validity of an order of a municipal body admitted to be a corporation both de facto and de jure, extending the boundaries of the district.</p> <p>11. Ho good reason is perceived why a municipal corporation which has exceeded its jurisdiction and has proceeded illegally, may not be proceeded against by quo warranto, by scire facias, or by the common law writ of certiorari, indifferently, as the one or the other may afford a proper and sufficient remedy.</p> <p>12. Drainage uaw—enlarging drainage district—conditions to the exercise of the power. Before the commissioners of a drainage district are authorized by law to make an order annexing other lands thereto, .they must determine, from the evidence, whether the requisite number of adult owners have signed the petition for annexation, and whether the signers are the owners of the requisite proportions of the lands embraced within the district, and whether the lands sought to be annexed are involved in the same system of drainage, and require for outlets the drains of the district.</p> <p>13. Same—notice—of enlargement of drainage district. Section 42 of the Drainage act of 1885, vesting the commissioners of a drainage district with power to enlarge the boundaries of their district, fails to prescribe the mode of procedure, or the notice to be given to the owners of the lands sought to be annexed. The court holds, however, that the same notice required in the formation of an original district must be given of the proceeding for such enlargement, and that without such notice the order of annexation is void, and will be quashed on certiorari.</p> <p>14. Same—defective notice—who may avail of it—in the case of several land owners. Although a land owner may waive a want of sufficient notice in a proceeding to annex additional territory to an already existing drainage district, by appearing at the time and place appointed for hearing objections, so far as he is concerned, yet he has the right to have the annexation valid and binding on all the land owners or on none, and therefore he may take advantage of the defective notice, unless all persons affected by the order appeared, and thereby conferred jurisdiction. In such case, the commissioners must acquire jurisdiction of all the land owners, and of all the lands within the territory proposed to be annexed, before they may lawfully act. If the order of annexation is void as to some of the lands and owners, it is so in toto.</p>

Alfred Sample, Judge, presiding. This was a creditor’s bill, filed in the McLean circuit court, by the Moline Plow Company, a corporation, against appellant, Mary E. Coale, and her husband, Griffith E. Coale, and Lewis Hormell, to set aside as fraudulent as to creditors a deed executed July 28,1884, by Griffith E. Coale and Mary E., his wife, to Vincent M. Coale, and a deed from said Vincent M. back to the said Mary E., and to subject the land thereby conveyed, to the…

<p>1. Drainage raw—pro'ceeds of additional assessment—where to be applied—requisites of petition and-notice. A. petition for leave to raise an additional sum by assessment for the propose of repairing or strengthening and improving a levee, and the notice thereof, need not state where the money shall be expended when raised. It may be used outside of the district, under the order and direction of the court.</p> <p>2. Same—modification of orders—notice. Where the county court has once acquired jurisdiction, by proper notice, etc., of the matter of a special assessment of lands benefited, for the purpose of improving a levee, it may modify its orders from time to time, whenever necessary, until the matter is finally disposed of, without any further notice to the land owners.</p> <p>3. Practice—taking case under advisement-—entry of judgment as of a preceding term. The county court, after the hearing of objections to the confirmation of special assessments upon lands in a drainage district, has the right to take the case under advisement for a reasonable time; but the propriety of the practice of entering judgment at a succeeding term as of the one at which the hearing was had, will not be considered when no injury can result therefrom.</p> <p>4. Appear—-judgment nunc pro tunc. Where a county judge takes a case under advisement, and at a subsequent term gives judgment and directs it to be entered as of the preceding term, the parties will have the same right of appeal or to sue out a writ of error as if the judgment was rendered at such subsequent term, and also the right to a bill of exceptions, on proper application.</p>

James A. Creighton, Judge, presiding. This was a bill in chancery, filed August 21, 1883, by Harvey Darnall and Agnes Darnall, against appellant and the other heirs of Amelia Darnall, who died on the 18th day of February, 1883, intestate, in Henry county, Iowa, where she then resided, for the partition of certain lands in Sangamon county, Illinois, of which she was seized at the time of her death.

Writ of Error to the Circuit Court of McLean county; the Hon. Alfred Sample, Judge, presiding. The plaintiff in error, William Watson, was indicted by the grand jury of McLean county, Illinois, at the February term, A. D. 1890, for the crime of burglary. The indictment contains four counts.

<p>Writ of Error to the Circuit Court of Cass county; the Hon. Lyman Lacey, Judge, presiding.</p>

<p>1. Drainage law—organization of district—how questioned. On bill to foreclose the lien of special assessments by the commissioners of a drainage district, the defendants can not call in question the regularity of the organization of the district. That can not be questioned collaterally.</p> <p>2. Same—admission of organization—what so regarded. An unqualified admission, by answer, and by stipulation, of the due organization of a drainage district under a certain act named, is an admission that all the steps necessary to a legal organization of the district were taken in manner and form as prescribed by the act, including the presentation of the petition, giving .the name and post-office address of each of the several land owners, so far as known, and the giving of the requisite actual or constructive notice to all persons having any legal interest in the proceedings.</p> <p>3. Same—notice—as to classification of lands, cmd levy of assessments —of the mode. Section 60 of the Drainage act of 1885, which prescribes the mode of giving notice of the time and place for hearing objections to the action of the commissioners in classifying lands and levying assessments, only requires notice by publication, and it is immaterial whether copies of such notice are sent to parties interested or not.</p> <p>i. Same—admission—that proper notice was given. The admission that a notice of the time and place for hearing objections to the classification of the lands, and the levy of special assessments for benefits, was duly published, addressed “to whom it may concern,” in a weekly newspaper, for two successive weeks, and that a copy thereof was duly mailed, postpaid, to each land owner, will be sufficient to show notice to all persons required by law to be notified.</p> <p>■5. Same—;jurisdiction—by notice. The jurisdiction of the commissioners to make an assessment is derived by the publication of the notice required by section 60 of the act, and is not dependent upon the voluntary appearance of the parties in interest.</p> <p>6. Same—lien for assessments—under act of 1885—constitutionality— nature of the lien. The Drainage law of 1885, giving a lien for assessments superior to the liens of existing incumbrances, is not unconstitutional, as impairing the obligation of contracts or divesting vested rights. Every one holds his property subject to the exercise of the taxing power, regardless of the nature of his interest,—whether a fee, an estate in expectancy, an estate for years, or a mere lien.</p> <p>7. The lien of a special assessment in a drainage district created under section 72 of the Drainage act of 1885, is not upon any special interest in the land, but upon the land itself,—that is, upon the res. The lien so given is of the same nature, and subject to the same general rules, as that given in case of general taxes.</p> <p>8. Special assessments—referable to the taxing power. Special assessments are a species of taxation, peculiar in their nature, and subject to special rules, but the power to levy them is referable to the taxing power.</p> <p>9. Same—pre-existing claims and liens—held subordinate thereto. A lien of a special assessment, like the lien for taxes, attaches to the land itself, irrespective of the interests of the various owners, and is paramount to all other claims or liens against the property.</p> <p>10. Same—sale of railroad for lien of assessments. On bill to foreclose the lien of a special assessment upon the right of way and track of a railroad company, the right of way and track may be ordered to be sold for the satisfaction of the assessment.</p> <p>11. Same—remedy to question assessment. The statute having provided an adequate remedy, in case of an erroneous assessment, by appeal, that remedy must be held exclusive, and parties who have neglected to pursue it must be conclusively presumed to be satisfied with the assessment.</p>

<p>1. Cbiminal law—alibi—proof in respect thereto—reasonable doubt. Where the evidence of the presence of one charged with crime at, a different place than that of the crime is not necessarily inconsistent with his having been present at the place when the crime was committed, as, where the accused might have been at both places, it will fail to establish the defense of alibi.</p> <p>2. A jury must believe, beyond a reasonable doubt, from a consideration of all the evidence, that a defendant is guilty, including the question of an alibi, if that is involved in the defense, before they are justified in so finding; and an instruction on a question of an alibi, that if, after considering all the facts and circumstances in proof, the jury had no reasonable doubt of the presence of the defendant at the place "where the crime was committed, then the defense of alibi had not been imade out, and was unavailing, is proper, and is not in conflict with the rule as to reasonable doubt.</p> <p>3. Same—previous character of the accused—as an element to be considered. On the trial of a party for an assault with intent to murder, the previous character of the accused is competent evidence to be considered by the jury on the question of guilt or innocence, and it is proper to be considered in mitigation of punishment. But the force of such evidence must always depend upon the nature and character of ' the inculpatory evidence.</p> <p>" 4. Impeaching a witness—laying the foundation. There is no error in refusing proof that a witness offered another witness a sum of money . to testify to certain facts after he was informed that the supposed facts were not true, where no proper foundation has been laid in the examination of the witness thus sought to be impeached.</p> <p>5. On the trial of parties for an assault with intent to murder, they called the foreman of the grand jury which found the bill, and asked him if a certain witness for the prosecution did not testify before that body to certain facts, and make statements named. There was no foundation laid-for the evidence by calling the witness’ attention to the time? and place and the facts: Held, that the court properly refused the impeaching, evidence sought to be given.</p> <p>6. It is not proper to call a witness to contradict or impeach another witness in respect of matters occurring out of court, as, by showing that the latter had made some statement inconsistent with his testimony, unless the attention of the witness is first called to the time and place of the alleged statement, and he is afforded an opportunity for explanation in respect thereof.</p> <p>7. On proof of the previous character of persons being tried for an assault with intent to murder, some of the witnesses said they had read a charge of poisoning horses by one of the defendants, which was first published after the defendants’ arrest. The defendants then offered to prove that such charge was published at the instigation of H., a witness for the prosecution, which the court refused to admit: Held, proper, as no foundation had been laid for the evidence by the examination of H.</p> <p>8. Same—recalling witness—to lay foundation to contradict him. Ordinarily the court should allow a witness to be recalled for the purpose of laying the foundation to impeach him, by showing his statements out of court; but when the attention of counsel has been called to the rule, and a reasonable limit allowed to put the proper questions to the witness, the refusal of the court to allow the witness to be recalled is within the discretion of the trial court.</p> <p>9. Same—proof of collateral matters. On the trial of three for an assault with intent to murder, the defendants called witnesses to prove their previous good character, who were asked by the State’s attorney if they had ever heard of the assault of one of the defendants on a third party, and some of them stating that they saw that assault, the defendants offered to prove what did occur at the prior assault, which the court refused to allow: Held, that the proposed evidence was properly refused, as calling for collateral matters.</p> <p>10. Same—feeling and disposition of the witness toward the party—as a test of credibility. Where a witness testifies to a threat made by a defendant against the prosecuting witness, such defendant may be asked whether he and the witness were on friendly or speaking terms, as tending to show the improbability of his having made the threats to such witness. But the refusal to allow such question will not prejudice the defendant, if he is allowed to deny making any such statements to the witness.</p> <p>11. As to matters purely collateral, when the party calls them out on cross-examination, he is bound by the answer of the witness, but not so in respect of matters relevant and material to the issue being tried. The feeling and disposition of the witness toward the party is, however, relevant and material; and on cross-examination it is competent to test the witness in respect to his feeling, and if he has not done acts or used expressions showing hatred or ill-will toward the party against whom he is testifying, and if he denies the same, to introduce contradictory evidence by way of impeachment.</p> <p>12. Instructions—should not be marked as for either party. The practice of marking instructions for the one party or the other is pernicious, and should not be tolerated. They should go to the jury as the instructions of the court, without anything to indicate at whose instance given.</p>

<p>Appeal from the Circuit Court of Montgomery county; the Hon. J. Fouke, Judge, presiding.</p>

Writ of Error to the Circuit Court of Sangamon county; the Hon. James A. Creighton, Judge, presiding. Held: and that said mortgages be foreclosed,—to which bill as amended, filed as aforesaid by the said Henry J. Smith, in the said circuit court of the county of Macoupin, State of Illinois, this defendant, James W. Patton, on the 4th day of October, A. D. 1880, put in hi's answer, denying that said notes and mortgages were in good faith,…

<p>Writ of Error to the Circuit Court of Champaign county; the Hon. C. B. Smith, Judge, presiding.</p>

<p>Wbit of Bbbob to the Circuit Court of Fulton county; the Hon. John C. Bagby, Judge, presiding.</p>

<p>Appeal from the County Court of McLean county; the Hon. C. D. Myebs, Judge, presiding.</p>

Isaac G: Wilson, Judge, presiding. On the 10th day of August, 1882, the Sycamore Marsh Harvester Manufacturing Company was indebted to the… Held: by pledge of said manufacturing company, and as collateral security to said claim of said bank against said manufacturing company, nine packages of farmers’ notes, so called, being notes originally taken by said manufacturing company for goods sold by it to farmers and others about the country,— said nine packages being numbered,…

<p>Appeal from the Circuit Court of Clay county; the Hon. C. S. Conger, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Gwynn Garnett, Judge, presiding.</p>

Louis; the Hon. B. H. Canby, Judge, presiding. This was an action on the case, brought by Anton Keifer, administrator of the estate of John Keifer, deceased, against the Consolidated Ice Company arid the Heim Brewing Company, both defendants being private corporations, to recover damages for causing the death of the intestate.

<p>Appeal from the Circuit Court of LaSalle county; the Hon. Dorrance Dibell, Judge, presiding.</p>

<p>1. WmiiS—devise of rents and profits of land—operating as a devise of the land itself. A devise of the rents, income and profits of land is equivalent to a devise of the land itself.</p> <p>2. Same—of the estate devised—whether a trust is created. A testator devised to his wife as follows: “All the rents, income and profits-arising from all my real estate which I may own, (excepting certain specified property,) until the eldest one of my children has attained the age of eighteen years, upon condition that my said wife shall raise, support and educate my children until they respectively have attained the age of eighteen years, after which my wife shall receive one-third, only, of the net rents and income of such real estate, the other two-thirds to be paid to and equally divided among my children by my present wife:” Held, that the wife took an interest in the land as a devisee, which was liable to sale on execution against her, and that she did not hold such title as trustee for the testator’s children.</p> <p>3. If the testator had expressed a wish, expectation, hope, desire or request that the devisee should devise the rents, profits and income to the benefit of his children, a trust might have been created in favor of the children. The mere expression of the motive of a gift or grant is not sufficient to establish a trust. If the raising and education of the children had been required out of the rents and profits, the rule might be different.</p> <p>4. Same—legacy as a charge—as a personal charge, and a charge upon the estate. If a legacy is made a personal charge on the devisee, an acceptance of the devise imposes a personal liability on the devisee, who will take the estate devised as a purchaser and in fee; but if the legacy is charged on the estate devised, the devisee does not taije as a purchaser, but as beneficial devisee.</p>

B. B. Burroughs, Judge, presiding. This was a creditor’s bill, filed by Mary Huber, in the circuit court of Madison county, against John T. Johnson, Fredericka Nolan and Thomas Nolan, to set aside a deed of conveyance made jointly by said John T. Johnson, Fredericka Nolan and Gesch W. Bisen, to the said Thomas Nolan, as being fraudulent against the complainant.

<p>Appeal from the County Court of Bock Island county; the Hon. Lucian Adams, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. Oliver H. Horton, Judge, presiding.</p>

<p>Appeal from the Appellate Court for the Fourth District;—. heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. B. H. Canby, Judge of the City Court of East St. Louis, presiding.</p>

<p>1. Corporations—subscription for stock—after issue to others. Stock in a private corporation, after its issue to outside parties, as owners thereof, is not the subject matter of subscription. A subscription must be for such stock as the company still owns and has not parted with.</p> <p>2. Same—stockholders—contract diminishing liability—creditors. As against creditors of a corporation, no contract made by the company can be allowed to stand which attempts to change a subscription into a purchase of paid up stock, or to diminish the amount to be paid by the stockholder.</p> <p>3. The issue of certificates of stock to subscribers on payment of forty per cent of their subscriptions does not make them the holders of full paid stock in such sense as that they can not be called upon for the remaining sixty per cent, at the suit of creditors of the corporation.</p> <p>4. Setting aside decree—for fraud. Where the only allegation of fraud for the setting aside of a decree is the suppression of certain contracts relating to the subject matter of the suit, which could not have changed the result if they had been produced and the attention of the court called to them, the bill seeking to set aside the decree upon that ground can not be maintained.</p> <p>5. Parties—on bill to dissolve an insolvent corporation—and to appoint a receiver. The stockholders are not necessary parties to a bill by creditors to dissolve an insolvent corporation, and have a receiver appointed to wind up its affairs. The court acquires jurisdiction to appoint a receiver of corporate assets upon service of process on the corporation.</p>

<p>Appeal from the Circuit Court of Johnson county; the Hon. Bobt. W. McCartney, Judge, presiding.</p>

<p>1. Taxation—as to corporations—classifying corporations—rule of uniformity—constitutional limitation. The constitution does not prohibit the legislature from placing certain specified corporations in one class, and providing a uniform method of assessment for that class, and placing certain other specified corporations in another class, and pro.viding a uniform mode of assessment for that class, different from the first class. The rule of uniformity in the constitution applies to the class, and not to all corporations alike.</p> <p>2. The fourth clause of section 3 of the Bevenue act,_as amended in 1879, which provides for the assessment of the capital stock and fran- • ehise of a certain class of corporations by the State Board of Equalization, and of other corporations by the local assessors, is not in conflict with section 1, article 9, of the constitution, in its requirement of uniformity.</p> <p>3. Same—former decisions. In this case, the rulings in Coal Run Coal Co. v. Finlen, 124 Ill. 666, and Ottawa Cas Light and Coke Co. v. Downey, 127 id. 201, are brought in review, and adhered to.</p> <p>4. Same—capital stock and franchise — as corporate property—for •purposes of taxation. Both the capital stock of a private corporation and its franchise are corporate property, for the purposes of assessment and taxation.</p> <p>5. The power to impose a tax upon the capital stock and franchise ■ of corporations formed for pecuniary profit is not confined to the first clause of section 1, article 9. of the constitution of 1870. The second clause is not'confined to occupations, but also applies to property rights.</p> <p>6. Same—State Board of Equalization—basis of its action in fixing valuations. The State Board of Equalization is not concluded by the valuation placed upon the property of a corporation by its officers, nolis it essential that it should first hear evidence in fixing the taxable value of property or in changing the valuation returned by the corporation. The board may act upon its own judgment.</p> <p>7. Same—return by corporation—presumption. Where a bill seeking to enjoin a tax assessed on the capital stock of a corporation fails to show what return was made by the corporation in respect to its corporate indebtedness, it will be presumed that the return was such as to justify the assessment made.</p> <p>8. Chancery pleading—allegation of fraud—sufficiency. The statement in a bill to enjoin the collection of a tax, that the action of the State Board of Equalization was fraudulent, is merely the statement of the conclusion or opinion of the pleader. It devolves on the party claiming fraud to state the facts relied on as constituting it.</p> <p>9. Same—admission by demurrer. Where the facts alleged in a bill do not necessarily amount to fraud, a demurrer to the bill does not admit fraud. Eacts alleged for the purpose of showing fraud are to be taken most strongly against the pleader.</p> <p>10. Constitution—construction—adopting provisions of prior constitution, and the construction thereof—presumption. It must be presumed that when the present constitution was adopted it was with full knowledge of the interpretation that had been placed by this court upon the language incorporated therein, which was taken from the prior constitution.</p>

A. A. Smith, Judge, presiding. This was a bill in equity, brought by William Young, to enjoin the commissioners of highways of the town of Maquon, in Knox county, from digging a ditch along the south side of the highway adjoining the lands of the complainant, extending from what is known as the “east Harper drain” to the “west Harper drain,” a distance of about forty-five rods, and to restrain them from diverting surface waters from their natural •channel, and discharging…

Writ of Error to the Appellate Court for the Third District ;—heard in that court on appeal from the Circuit Court of Greene county; the Hon. George W. Herdman, Judge, presiding.

<p>1. Negligence—injury at railway crossing—duty of flagman to give timely warning—right of the public to rely thereon. It is the duty of a flagman stationed at a public highway crossing by a railway company, to know and give timely warning of the near approach of trains, and the public will have a right to rely upon a reasonable performance of that duty.</p> <p>2. Same—flagman improperly signaling to cross. It is gross negligence for the flagman of a railway company at a street crossing to signal to a traveler to drive his team and wagon upon the railway track when he knows that a passenger train is approaching the crossing without blowing a whistle or ringing a bell, and the view of the approaching train is obstructed by cars left on the side-tracks, and by buildings.</p> <p>3. A count in a declaration in an action against a railway company, for negligence, resulting in a personal injury at a highway crossing, Alleged an obstruction of the view from the highway by cars and buildings, and that the flagman of the company, well knowing the near approach of a train, recklessly, negligently and willfully beckoned to the plaintiff to drive upon the tracks, etc. There was proof on the trial, not only that the flagman beckoned the plaintiff to cross over the tracks, but that he did this negligently and recklessly, when he knew the train was coming : Held, that there was sufficient evidence to authorize an instruction based upon the negligence charged in the count.</p> <p>4. Same—signal by flagman not to cross—but not in proper time— other precautions neglected—care required of persons seeking to cross a railway track. The mere fact that a party injured by a collision at a highway crossing was signaled by a flagman stationed there not to •cross the tracks, will not relieve the railway company from liability for neglecting to lower the gates on the approach of a train, and to sound a bell or whistle, and in running its train at a rate of speed prohibited by an ordinance, if the signal to stop is not given in time for the party injured to avoid the injury by the exercise of ordinary care. Any ■warning in such a case is not sufficient to prevent a recovery.'</p> <p>5. In an action against a railway company the defendant asked this instruction : “If the jury believe, from the evidence, that the flagman •on the crossing did not flag the plaintiff to cross the tracks at all, and if the jury further believe, from the evidence, that he signaled the plaintiff not to cross, then the jury are instructed, as a matter of law, that the plaintiff is not entitled to recover in this case, even if the jury should also find, from the evidence, that the' gates were not lowered on the crossing, that no bell was rung or whistle sounded, and that the train was moving at a rate of speed in excess of that prescribed by the ordinances of the town.” The court modified the same by inserting after the words “not to cross,” the words, “in time for the plaintiff, by the exercise of reasonable care, to have avoided the injuryHeld, that the modification was manifestly proper.</p> <p>6. In such case, the defendant asked the court to instruct the jury, that if the witness, P., attempted to prevent the plaintiff from crossing, in time to avoid the injury, then there could be no recovery, which was refused as asked : Held, properly refused, as ignoring the question whether the plaintiff had notice or knowledge of such attempt.</p> <p>7. In the same case, the defendant asked this instruction: “The jury are instructed, as a matter of law, that under the evidence in this case the plaintiff is not entitled to recover, even if the jury believe, from the evidence, that the flagman signaled him to come across the track, and if the jury also believe, from the evidence, that no bell was rung or whistle sounded, provided the jury believe, from the evidence, that the plaintiff could, by looking and listening, have discovered the approach of the train in season to avoid the accident complained of,” which was refused as asked: Held, properly refused, as it deprived the plaintiff, as matter of law and wholly regardless of the surrounding circumstances, of the right to place any reliance upon the signals given by the flagman.</p> <p>8. The court modified the instruction by striking out all after the word “plaintiff,” where it last occurred, and substituting therefor the words, “did not exercise ordinary and reasonable care, under all the circumstances as shown by the evidence, to discover the approach of the train and prevent being injuredHeld, that the instruction, as modified, expressed the law substantially as stated by this court in prior cases.</p> <p>9. Where a public street was crossed by two main tracks and twenty side-tracks of a railway company, and a flagman was stationed at such crossing to give warning of danger to any one about to cross the tracks, and plaintiff was injured by a collision in attempting to pass over the railroad tracks, it was held, on the trial of an action by him against the company, no error to refuse to instruct the jury that the plaintiff was under an obligation, while driving across the tracks, before driving over any particular track, to look and listen for a train that might be approaching upon any of the tracks, and that the obligation which the law imposed upon him would not be satisfied by looking and listening before driving upon the first track, but that the exercise of such care and caution on Ms part should have existed while driving over all of the tracks.</p> <p>10. Same-—duty of passenger to seek a safer crossing. The mere fact that by going several blocks out of his direct course a party might have crossed a railroad at a place where there were fewer tracks and the crossing was safer, which he fails to do, does not necessarily, and as a matter of law, charge him with a want of ordinary care. This case is distinguished from City of Centralia v. Krouse, 64 Ill. 19.</p> <p>11. It is not per se negligence in a party to attempt to pass over railroad tracks crossing a public street generally traveled, and guarded by' a watch tower, and by gates across the street on both sides of the tracks, when a watchman is also stationed there, both night and day, to warn persons of danger. To hold this negligence would be tantamount to' closing the street as a public highway.</p> <p>12. Evidence—quantum of proof required. On the trial of an action against a railway company, to recover for a personal injury while in. the act of crossing the railway track in a street, the defendant asked the court to instruct the jury, that if the evidence was evenly balanced, or if it preponderated, as to a material point, in favor of the defendant, the finding should be not guilty, which the court modified by striking out the words “as to a material point, ” and then gave it: Held, that under the facts the instruction was properly refused, as requiring too-much proof on the part of the plaintiff.</p> <p>13. Pleading and evidence—recovery upon one or more of several counts. Where several different grounds of action as acts of negligence-are alleged in several counts, the plaintiff will be entitled to recover if he proves, by a preponderance of the evidence, either ground of action. The burden is not on Mm to prove, by a preponderance of evidence, as a condition precedent to the right of recovery, each and all of the material acts of negligence in each and all the counts. -</p> <p>14. Pkactice—specific objection—variance. If there is a variance between the allegations of the plaintiff’s declaration and the proofs, the objection should be made in the trial court, so as to afford an opportunity to amend.</p> <p>15. Same—objections to particular counts. Instructions directing the jury to disregard the several counts in a declaration which fail to call the attention of either court or jury to any supposed defects of either of such counts, are properly refused.</p> <p>16. Same—time to object—defects in declaration. If a declaration, or count thereof, in an action for negligence, is defective, in failing to aver due care on the part of the plaintiff, the defendant should demur, or call the attention of the court to it in some other way, before final judgment, so as to afford an opportunity to obviate the defect by amendment. Such defects are cured by the verdict.</p> <p>17. Same—special questions to jury. There is no error in refusing to submit to the jury special questions of fact which are merely of an evidentiary character.</p> <p>18. New trial—newly discovered evidence. Newly discovered evidence which is merely cumulative and inconclusive is no ground for a .new trial.</p>

<p>1. Evidence—facts from the sense of hearing—as distinguished from mere matter of opinion. The statement of a fact by a witness which he ascertained through the sense of hearing, is not the statement of mere matter of opinion, but is the statement of a conclusion reached directly •and primarily from an operation of the sense of hearing, and is admissible in evidence.</p> <p>2. Same—accused testifying in his own behalf—on cross-examination, •ashing as to a prior conviction of another offense. On a trial of one under an indictment for robbery, the defendant testified in his own behalf, and on cross-examination he was asked if he had not been indicted and convicted of an assault to kill. On objection, the court ruled that the witness might answer the question or not, as he saw fit. Defendant’s counsel, understanding that the court allowed the question, directed him to answer, and he testified that he had been once indicted for the offense named, and convicted simply of an assault and battery: Held, that there was no error. A. misapprehension of counsel •can not be regarded as an error on the part of the court.</p>

<p>1. Injunction — after the act is done—writ improvidently granted. Where the act sought to be enjoined is done before the complainant’s bill is filed, and he knows it is already done, a preliminary injunction issued to prevent the act will be improvidently granted, and will be properly dismissed on the hearing.</p> <p>2. Same—from what time operative. An injunction becomes operative, not merely from the time the writ is issued, but from the moment it is ordered by the judge.</p> <p>3. Writ of restitution—after dissolution of injunction. After a person who claimed a strip of ground had inclosed the same by a fence, an adverse claimant procured an injunction restraining him from taking possession of the land or erecting the fence thereon, and while the defendant was restrained by the writ the complainant tore down such fence, and included the strip with his adjoining enclosure. It was held proper for the court, in dissolving the injunction, to restore the defendant to possession by a writ of restitution. The court should place the parties in statu quo.</p>

Writ of Error to the Circuit Court of Cook county; the Hon. Lorin C. Collins, Judge, presiding. On the 20th day-of June, 1864, Bobert W. Hyman pur■chased an undivided half of section 21, township 39, north, of range 13, east of the third principal meridian, Cook county, Illinois, for himself and Edward Mott Bobinson, the latter furnishing all the money to make the cash payments.

Appeal front the Appellate Court for the First District;— beard in that court on writ of error to the Circuit Court of Cook County; the Hon. Lobin C. Collins, Judge, presiding. This is a bill to redeem, prosecuted by Edward J. Scanlan and Nellie Scanlan, and to which Timothy H. Scanlan and Ann Scanlan were made defendants.

Writ of Error to the Appellate Court for the Fourth District ;—heard in that court on writ of error to the Circuit Court of Effingham county; the Hon. Wm. C. Jones, Judge, presiding.

<p>Appeal from the County Court of St. Clair county; the Hon.. John B. Hay, Judge, presiding.</p>

<p>1. Constitutional law—title of an act—requirements of the constitution of 1848—act of 1869 concerning subscription by counties to stock of St. Louis and Southeastern Railroad Company—diverting subscription from another company. Section 20 of the act of March 10,1869, entitled “An act to incorporate the St. Louis and Southeastern Railroad Company,” which authorized certain counties through which the road was located, to subscribe to the capital stock of the company all or any part of any sums theretofore voted by the legal voters to another railway company, is void, as being in violation of section 23, article 3, of the constitution of 1848, which provided that “no private or local law which may be passed * * * shall embrace more than one subject, and that shall be expressed in the title.”</p> <p>2. That was a private or local act, and although the subscribing by counties, etc., to the capital stock of the corporation thereby created is germane to the object expressed in the title, the diversion to that corporation of a subscription theretofore authorized by a vote of the people to be made to a different corporation .is a wholly different thing. That, it is to be presumed, would affect, adversely, the corporation from which the subscription voted was sought to be diverted, and was, therefore, clearly not germane to the title of the act.</p> <p>3. Municipal bonds—issued without lawful authority, void. It is the doctrine of this court that municipal bonds issued for stock in railroad corporations without authority of law, are void, no matter into whose hands they may come, and the collection of taxes levied to pay the interest on the same may be enjoined.</p> <p>4. Same—donation in aid of railroads—voted prior to constitution of 1870. Where a county donation of bonds in aid of a railway is properly authorized under laws existing prior to the adoption of the constitution of'1870, by a vote of the people, under such laws, the bonds of the county may be issued under such authority after that constitution took effect, and "they will be binding on the county so issuing them.</p> <p>5. Municipal indebtedness—constitutional limitation—upon what valuation or assessment to be based. It is held in this case that it is the value of the taxable property of the county, to be ascertained by the last assessment for State and county taxes previous to the incurring of” an indebtedness, that is, the assessment made by the local assessor, upon which the five per cent is to be computed which limits the power of the county to contract a debt, and not the equalized valuation as fixed by the State Board of Equalization. But this decision is overruled in the later case of Culbertson et al. v. The City of Fulton et al. 127 Ill. 30, where it is held, that it is the assessment as finally fixed by the State Board of Equalization that must govern, in determining the basis of the limitation of the power to create municipal indebtedness.</p>